Karnataka High Court
Venkatachala S/O Sanna Hudugaiah vs State Of Karnataka By Kudur Police ... on 25 July, 2011
BSS SES AMG aE
] CrLA.1601/2004
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 51H DAY OF JULY 201]
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACH HAPURE
CRIMINAL APPEAL NO. 160] OF z9004 a
BETWEEN
VENKATACHALA,
5/0. SANNA HUDUGAIAH
@ KARIYANNA,
AGED ABOUT 25 YEARS,
HARLIAN, COOLIE, ;
R/O, LAKKENAHALLI, we
SOLUR HOBLL MAGADE- TALK, 9 .. APPELLANT
(BY M/S. C.G. SUNDAR. & 3. BASAVARAJU, ADVS,)
AND
STATE OF KARNATAKA © 00
BY KUDUR POLICE STATION, .
REP. BY STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HGH COURT BUILDINGS...
BANGALORE. ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE. HCGP)
THIS. CRLA FILED U/S. 374122) CRPC. BY THE
. ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT pT.
SQ, 7, 04. PASSED BY THE {| ADDL. DIST. & S.J. BANGALORE
"RURAL DIST. BANGALORE, IN S.C.NO.205/01 - CONVICTING
THE APPELLANT/ ACCUSED FOR THE OFF ENCE P/U/S.307 OF
aPC AND SENTENCING HIM TO UNDERGO RU. FOR F IVE YEARS
AND .ALSO SHALL Pay A FINE OF RS.j .00,000/- LD. To
eee OOS SER
3 CrLA.1601/2004
time, the appellant accused) came to the front vard of house of
PW.3 and caused assaull with chopper on the head portion
said to be with the intention to kill him and at that time Pw. bo
"ame outside and when he iried to apprehend, the. accused
Said to have run away from the place. ' he injured was lake en te
RR. Nailk Nursing Home for immediate treatment, "Meant
the Police came to Know about the ine 'ident and. Pw. 6 the head
conslable of Nelamangala P. 2. came 'to. R Re. "Naik 'Nursing
home. enquired about the injured. He y was 0b. ina condition to
give any statement, Ta the, ciroumstances,, he recorded the
complaint (Fx P. 3) of PW. 1 son: 'of Pw. 3 and registered a crime
and sent the FIR. to the Magistrate 1 broiigh PW.7.
suing | the a ftivestigation, Spotl mahazar was
held as per EX. Pr: and the sample mud and blood stained mud
MOs. j and 2 were. seized I from the spot. The injured was taken
to different. hospit AUS is including NIMHANS hospital and also
Covet, Hospital, Nei jdmang: ala. He was treated by PWs.11, 12,
15, 16 and ia The Statements of the Witnesses were recorded
during the "vourse of the investigation. The injury certificates
Were collected. The Blood stained clothes of the injured MO.3
A eo
4 -TLA. 1601/2004
Were seized under the mahazar Ex.P2. After the arrest of the
appellant, he led the Police and the panchas to a place aid
from the bushes, produced a chopper M.O.8. [It was. 'seized os
under the mahazar. After compliance with all the. requirements, . |
fled charge sheet for the punishable under Section 307 L Pe. | ee
During the course of the trial, the prosecution examined
PWs.1 to 19 and in their evidence got marked the documents
Exs.P.1 to P. and MOs.1 to- 8. The statement of the accused
Was recorded under Section 21g, Cr. BC C. The accused has taken
the defense of total' dental and. I he has. net led any evidence. The
Trial Court after i hearing t the parties and on appreciation of the
material on: record, convicted 'the appellant /accused for the
offence punishabte tinder "Section 307 IPC and ordered to
undergo RI. for five years and fo pay fine of Rs.j lakh,
default to undergo 9. L for. one year. Aggrieved by the conviction
and the's sente nee, the pe esent appeal has been filed.
3 ur have heard the learned counsel for the appellant
- and the learned High Court Government Pleader, The points
mo that a arise for consideration are: pa
of,
3 CrLA. 1601/2004
l. Whether the appellant has made out any
grounds to warrant interlerence in the ~.
conviction and sentence ordered by the Trial -
Court?
2, Whether his application under Sec tion 220
(6) Cr.P.C. deserves to be allowed? a |
4, fis the contention oF the learned counsel for the
appellant that the prosecution has failed to Prove the. motive
and that except the interested version of BS Ws A, 3 and 5, none
of the independent witnesses. have supported 'the case of the
Prosecution and therefore, he clams, that the uncorroborated
testimony of these witnesses isi noe sufficient fo prove the guilt.
30 also, it is his contention thiat MO.8 was not blood stained
and this itself indicates that the weapon seized is not of the
accused and that hie has beer: falsely implicated in the crime. It
s also his. submission that the relationship between PW. and
the appellant are > cordial and to maintain this relationship in
*s, future, they have seitled the matter and therefore, has sought
. fOr. permission to compound the offence. On these grounds, he
'has sought for setting aside the conviction and the sentence
: ordered by the Trial Court, Per contra, the learned High Court
he
Se 6 CrlaA. 1601/2004
Government Pleader has supported the judgment and order of
the Court below.
5. I have scrutinized the evidenre ed by "the.
Prosecution in the context of the submissions made by by the
learned counsel for the "ppeliant and. also. 'the: Goverament
Pleader. So far as the motive is cone ered, though there is no
serious case on behalf of the prosecution, it is not the law that
there should exist motive for Commission of any offence. Even
otherwise. a trivial cause at sometimes Js sufficient to hold that
there exists a motive bevwe "en the victiin and d the accused,
6, [L- is. relevant to note that on - 30- 5-1988 at about
6.00 pom., when PW 3 the injured Was returning to his home.
he saw the accused and two others sitting in the temple playing
cards. He, advise ed the accused that the temple is a pious place
aid 8 { that it As not proper Lo play the cards in the temple. In this
régar d there was. 2 quarrel and the appellant is said to have
- questioned the _suthority of PW.3 in posing the question.
"'Atyhow, Pw. 3 went to the home and it is at about 8.00 Dom.
_ when his family members were inside the house, he wad on the
° a: bed ie the front yard from which he could have Seen the
CrLA. 1601/2004
way
metmmbers of his family. At that Juneture, it is alleged th at the
appellant came armed With a chopper and caused assautt on
as
the head of Pw.s. This assault was witnessed by: PWol 2H
vame Outside and by the time he tried to apprcherid, the
appellant ran away. So there was single blow wi th the chopper
on the head of the victim PW.3.
7. Apart from W'S, the pre secution has. examined
PW.1 the son of PW.3, AW. 5 Dasa oma who has cordial
relationship between the Injuved and the Ace used, States in his
evidence that at 5. 00, pe m. on 1 that da Ay, whe en he was watching
the TV in the © house. if Pw. 3 Pw.8 3 was . sleeping 3 Just outside
the house on the liont ya ed and there was a street Hight and
one electric light in the house -of Pw.3 and further, he states
that the accused came "arrived with a chopper and started
abusing Pw. Su luestioning his ; authority as to who he is fo ask
about the pleying ear ds in the temple and « Saying so, he caused
"the assault wi ith the e chopper on the face of PW.3. On hearing
. ihe ¢ "Fes of P VS 3. PWs.l and 5 "ame outside, the accused also
; Said % O have: threatened them and ran away from the spot. So
A
MA
Cee
Be
nS aécepted in the context of the evidence of PWs.11, 12, 16 and
o CrhA. 1601/2004
og. The prosecution has aiso examined Dr.Tulsiram
PW.15 who examined the injured on 3] -5-1998 in the Ge vera
Hospital at Nelamangala and found one sutured wound on the ; -
left side of the head from the temple to above and Behind the -
left ear m -asuring 10 cms. X lem. x tem. He has fssued the.
injury certificate which has been. produced: a at Rx: P, 14, The
Doctor has certified jt to be a simple} inju ry vand-in 'this doniexct,
it is the submission of the learned counsel for "the appellant
that there is inconsistent ver ston. sot far as. the. nature of injury
is concerned, wherein, some Doctors: say that itis &rievous in
mature and Pw.i5 states it "te be a Sinuple injury. In this
context if thee vaidlence of Pw 15 is iooked into, it is relevant to
note that PW. Sw as cake io the Dost or PW.15 on 31.5.1998 at
about 8 a.m, after his treaiment in RR Naik's Nursing Horne,
He had examine cd the injurea and found Sutured wound and
did not b iake any Ae ay or made any such cxamination to find
= out as ta "wh ether 4 there were any fractures or not. Tt is on the
"basis of the sucured wound, he gave the opinion that PW.3 has
stuffer eds simple injury. So this opinion of PW.15 cannot be
va
x
Se
LO CrLaA. 1601/2004
10. PW.11 in his evidence states that on 2.6, 1998, he
examined PW.3 and found a sutured wound on left frontal
parietal region exten ding on to the lefi cheek, Edemia arund : -
the wound was present. Ecchymosis wag present.' He had ;
complained of the impairment of hearing from the left car and
one Dr.Prof.S.John, an ENT Profes or hati examine a im, T he
dental x Tay Was done on 18.6. 1998 'by Denia Surgeon and
that intra Maxillary wiring: we AS also done, "The e injured was
referred to Neuro Surgeon on 13. 6. 1998 and. it is stated that
the following observations were made:
"Left facial palsy | par "tial which ne duet injury to
the Peripheral, bi anch oe 7) nerve. Audiometry was
done deer ased Nearing. ont "left car and suggested
to see ENT surgeon for opinior."
50 from the evidence of PW, li. 'it can be made out that the
injured har Sus stained racture of left maxillary bone, whereas,
Pw, 12 has slated about the cutting of the left temporal parietal]
a bone, in. addition to. tine lefi fracture of maxillary bone and has
issued the certificate Ex.P.19.
'La. PW.15 is the Doctor who examined the injured on
"BES. POSE and Ex.P.14 js the certificate issued in this regard,
ve
il CrLA. 1601/2004
i2. PW.16 is the Doctor who examined the injured on
1.4.1998 and has produced the case record at Ex.P, 15 cand he.
is of the opinion that the injury is grievous in nat: ire . He has ~
observed about the sutured wound on the felt side ot the face -
extending to left frontal and parietal region" and he "referred
PW.3 to a Neuro Surgeon.
id. PW.l7isa Neuro Surgeon and he. also states about
the fracture inv olving left tempora pone and 'maxilla. He has
issued the certificate. Ex. P13 and is. of the opinion that the
injury suffered by Pw. 3 is grievens in nat ure.
14, So, -- "be. Sven from the evidence of the
Doctors referred tO we supra 'excopi PW. LS, all the other Doctors
State that the injury is rev aus and it is relevant te note that
Pw fea) hac d na: made any clinical examination or had not taken
the - Xiay of the skal and it is in these circumstances, by
| "Jooking to the sutured wound, he was of the opinion that it is
Staple injury.
15. >" Et is well established principle of law thai generally,
ai. injpured does not implicate an innocent and does not leave a
va
Pom
ad
a
:
i
the assault on PW.3. In the circumstances, | am of the opinion
iZ CrLaA. 1601] /2004
person who has really caused the harm. The evidence of an
injured witness stands on a higher footing, than the evidence of
any other witness. Infact, if there is no motive for PW. to be a
viclim of the assault, then there was no necessity for PW. to
implicate the accused falsely. It is relevant to note thot pws. i
3 and 5 state about the existence of electric light in front of the
house in the street and there is consisient version of PAs. 1, 3
and 5S about the assault made py "the : accused "with the
chopper. Though the prosecution examined PWs. and 1Q, they
have turned hostile to the prosecution 'as . regards the Incident
and also the motive "that. has . been attributed by the
prosecution. So, taking into. consideration the nature of the
injuries suffered and (he consistent version of the Doctors, the
medical evidence. also supports the ocular evidence.
16). So. far as the injured witness is concerned,
genérally the law: dees not require any corroboration. But any
how, it fs in the evidence of the prosecution that PWs.1 and 5
. Have come forward to support the version of the prosecution
and consistently stale about the involvement of the accused in
id CrLA, 1601/2004
that the ocular evidence and the medical evidence led by the
prosecution is sufficient to prove the guilt of the accused, se s far
as the incident is concerned,
iv. It is contended that MO.8. the chopper was nut
blood stained. It may be that after the ine ident, the weapon
could have been cleaned and kepi at. the place, But any how,
when an injured witness deposes before the Court, even the
non-recovery of the weapon 'itself 4s not siete ent to discard
and dislodge the evidence of the injured. witness,
18. So far as. the: intention is-c concerned, it is relevant
to note that. there as. a coal g quarrel between the accused
and PW.3, that is also. i re espect of playing cards. I do not
think that a person does n not go to the extent of causing the
assault fox such trivial causes. In these circumstances, taking
inte consideration the ature of the injuries suffered and also
". the weapon that has been used in causing the injury, the
evidence i is s suit icient io hold that the appellant has committed
= the offence punishable under Section 326 IPC, for having
caused grievous injury with a dangerous weapon.
an
aE
CrLa. 1601/2004
pt
rl
20. So also, he placed reliance on the decision of the
High Court of Bombay reported in II (2003) CCR 602 [S Sarjer AO
Shamrao Dhas and others vs. State of Maharashtra), wheren, .
it is a case under Section 307 readwith 34 IPC. 'Thers was
abatement of suicide, common intention, Hoting. sunleswtl,
assembly and the accused compromis ed the maiter an a
patched up their differences, The High Court also: eid that
they cannot be acquitted for ine offence tinder Section 307 IPC
on the basis of the said compromise The conviction Was
conlirmed and the seritence wai rechiced tw that already
undergone by the accused.
21. So also, | fe placed reliance on the decision of the
Apex Court reported i 200 5 AIRS SCW 7865 lishwar Singh v.
State of Madhya Pradesh), wherein, it is a case under Section
307 IPC, thie parties r cached into a compromise and offence
was not cormponnd able, However, it was held that compromise
"can be considered while awarding sentence. The accused was
7 "onvieted under Section 307 IPC and the accused was young
and 4 rst offender d the incident was over 15 years old and
and' in the circumstances, the accused having undergone part
PEE ERTS
16 CrLa. 1601/2004
of the sentence, the sentence y yas reduced to the period ares eady
undergone.
22. In part 1 (2010) CCR 54 (SC), the Apex Court took .
into consideration the provisions of Sections 307 "ahd BGA.
readwith 34 IPC, there Was settlement Betws een 'the par ties anid
the benefit of probation was granted. on appe al, _cotivietion
was modified to one under Sections Be A pes adwith. 34 IPC and
the matter was compromised i between | the 'parties, The Court
was not inclined to compouncd-4 the offence but "Bs the dispute
has been settled and the case was "focal to be trivial one. the
appellant was + release! on n probation under Section 4 of the
Probation of Offenders Act.
23. Now. as could be Bech from the facts on hand, they
are altogether different. Here is a case where appellant has
been soneicied by the Tia Court and ordered to undergo RI.
-- for five years anid | @ pay fine of Rs.1,00,000/-. Furthermore,
. the fact is rev eal that the request of PW.3 was only not to play
. cards in che temple and for such an advise, the accused could
have heeded to the request, but instead, he went to the extent
of causing grievous injury to a person who was aged 50 years
Ll? CrLaA. 1601/2004
at the time of the incident. The accused was aged more than
25 years at the time of the incident. The conduct of the
appellant/accused in causing the assault on an innocent man. ~
particularly, a person who had given a good advise has to be
taken a serious note of. Therefore, I do not think that elther it
is a case for compounding the offence and particularly, Section
326 IPC is not a compoundable one. inthe circumstances, Ido
not think that it is proper to consitier the application Hled
under Section 320 (6) CrP.C. in that yew of tie matter. the
application filed for compounding the offence isrejected,
24. So far.as the sentence is concerned, the Trial Court
has awarded RL for five years, | The 'appellant was aged 25
years as already stated 'and. taking into consideration the
nature of the offence and "the punishment provided, I am of the
opinion chat the. imprisoniient ordered has to be reduced,
confirming the amount of fine. In the circumstances, | answer
the point partly 'in affrmative and partly in negative and
_ proceed to pass:the following: ih
ere SAT EUS a
is CYLA. 1601/2004
ORDER
the appeal is allowed in part. The appellant is acquitted of the charge under Section 307 IPC. He is held guilty for the charge under Section 226 IPC and is ordered 10 undergo 2 2 :
Rigorous Imprisonment for two years and. to pay a. finie. of Rs.1,00,000/- as ordered by the . Trial Court, ined efault, undergo simple imprisonment for six nionthe, Phe bail bonds of the appellant are cancelled... The: Triad co urt is direct ed to secure the presence of the accused te to undergo the sentence ordered.
JL.